| Matter of Faublas v Rock |
| 2011 NY Slip Op 05607 [85 AD3d 1519] |
| June 30, 2011 |
| Appellate Division, Third Department |
| In the Matter of Clifford Faublas, Petitioner, v David A. Rock, asSuperintendent of Upstate Correctional Facility, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Franklin County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Based upon an investigation, petitioner's girlfriend was apprehended in the prison visitingroom, where she surrendered tobacco and marihuana to prison officials and later admitted thatshe had conspired with petitioner to smuggle the contraband into the facility. As a result,petitioner was found guilty following a tier III disciplinary hearing of smuggling, solicitation anddrug possession, and that determination was affirmed on administrative appeal. This CPLRarticle 78 proceeding ensued.
We confirm. The misbehavior report, testimony of the investigator and signed statementfrom petitioner's girlfriend provide substantial evidence to support the determination of guilt (see Matter of Quartieri v New York StateDept. of Correctional Servs., 70 AD3d 1071, 1072 [2010]; Matter of Schleede v Rabsatt, 65 AD3d1413, 1413 [2009]). Petitioner has demonstrated no prejudice resulting from the allegedinadequate employee assistance, as the Hearing Officer provided all requested documents duringthe hearing, with ample time for [*2]petitioner to review them (see Matter of Reid v Fischer, 80 AD3d1035, 1035 [2011]; Matter of Fluddv New York State Dept. of Correctional Servs., 62 AD3d 1149, 1152 [2009], lvdenied 13 NY3d 705 [2009]). Our review of the record demonstrates that the finding of guiltwas predicated on the evidence introduced, rather than any alleged hearing officer bias (see Matter of Barca v Fischer, 80AD3d 1038, 1039 [2011], lv denied 16 NY3d 711 [2011]; Matter of Reid vFischer, 80 AD3d at 1036). Finally, we do not find that the penalty imposed was "soshocking to one's sense of fairness as to be excessive," particularly in light of petitioner's priordrug-related offenses (Matter of Smitonv New York State Dept. of Correctional Servs., 70 AD3d 1148, 1150 [2010]).
Petitioner's remaining contentions have been considered and found to be either unpreservedor lacking in merit.
Peters, J.P., Lahtinen, Stein, Garry and Egan Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.